It is not uncommon for clients (and, yes, even lawyers) to commit the fundamental negotiating error of starting the bargaining with extreme demands, figuring that the case will find a middle ground later. Sometimes, however, the spouses (and, again, even lawyers) get caught up in the struggle, spending large sums on court costs and attorney fees, and generally investing so much of their money and egos that they have gone too far to back off. As a result, spouses end up taking a hard line. Friends and others may wonder why the conflict keeps escalating, thinking that maybe it is the attorney's fault. Sometimes it is the attorneys who have contributed to the conflict. More often, however, it is the spouses themselves.

Illustration:

Alice's lawyer demanded twleve years of maintenance for his client, although she and John had only been married for six years. Because John had plenty of money, Alice's lawyer thoughtlessly assumed John would compromise and "split the difference". Instead, John became so angry at the opening offer that settlement negotiations broke off and were never resumed. John spent the money in court that he would have paid Alice in maintenance, trying to prove that her "idiot lawyer was dead wrong".

The only persons who benefitted from those negotiations were the two lawyers. To avoid this impasse, John's lawyer should have brought this tactic out in the open by demanding that Alice's lawyer justify her position. In that way, the demand would have been exposed as ludicrous, even to them, and the negotiations could have moved on to more meaningful discussions.

On the other hand, advising your client to set the initial demand too low (or too near the amount you know your client will actually settle for) may result in early concessions that cannot be regained later in the negotiation process. As most lawyers assume, probably correctly, when you are dealing with a traditional negotiation, it pays to start high--just not too high.

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